What Does An Inheritance Lawyer Do?

An inheritance lawyer can do different things for different people, depending on the situation.

If you are planning your estate and would like your children to inherit something, an inheritance lawyer can help you draft your will, health care proxy, power of attorney, trusts, and other deeds, depending on your objective.

An inheritance lawyer can also engage in Medicaid planning to ensure that your assets are preserved in case you need long-term health care in the future.

If you are an heir, an inheritance lawyer can also help you, depending on your objective.

• Have you been omitted from the will? An inheritance lawyer can help you contest the will.
• Have you inherited from your parents intestate (intestate)? An inheritance lawyer can help you file a petition for administration to administer and distribute your parent’s property
• Are you an executor/heir? An inheritance lawyer can file a petition for probate to help you execute the will and distribute the proceeds to the beneficiaries.
• Are you an executor who has discovered that the estate has no assets because some assets have been wrongfully held by others? An inheritance lawyer can help you file a discovery and turnover proceeding to discover the assets and request the turnover of such assets from the respondent.
• Are you an heir who feels that the executor is committing misconduct or mismanaging estate assets? An inheritance lawyer can file a petition to remove or suspend the administrator/executor, and in some cases, an application for temporary restraining order when an executor or administrator is attempting to sell estate assets for below market value.
• Are you a spouse who has received something less than the elective share? An inheritance lawyer can help you compute your elective share based on testamentary substitutes plus the probate estate and file your claim for your elective share.

What your inheritance lawyer can do depends on the unique circumstances of your case and your objectives for hiring an inheritance lawyer.

Estate planning

When you are still planning your estate, an inheritance lawyer can help you draft your last will and testament, health care proxy, and power of attorney. The last will and testament will ensure your assets are distributed to the persons who you would like for them to receive it. The health care proxy and power of attorney will ensure that your medical and financial affairs are attended to, even if you lose capacity.

An inheritance lawyer can also help you with establishing trusts and Medicaid planning. Many people use trusts to reduce their assets on paper and preserve it for their beneficiaries or the next generation. In the same way, Medicaid planning ensures that you are able to preserve your assets while availing of Medicaid assistance for your long-term health care.

Contesting the will

If you are an heir who has been either omitted from the will or would receive less than what you would have received if there was no will, an inheritance lawyer can help you contest the will. The inheritance lawyer will be able to tell you whether you have standing to contest the will and which ground you could use to make your objections to the will. The most often used grounds for contesting a will are: improper execution, lack of testamentary capacity, undue influence, fraud, and forgery. Each type of ground requires proof of different elements, and an inheritance litigation lawyer will be able to advise you on which ground to use depending on the unique circumstances of your case and the evidence gathered during the discovery process.

Probate of will

If you are an executor, an inheritance lawyer can assist you in the filing of the petition to probate the will. In some cases, a petition is not required when the estate is small and it does not involve real estate. Once the will is probated, the inheritance lawyer can assist you in other tasks such as filing the inventory, selling real and personal property, defending against creditor claims, negotiating with creditors to accept settlement offers of a lesser amount, re-titling property into the names of the heirs, distributing the balance to beneficiaries, and preparing or filing an accounting.

Discovery and turn-over

An inheritance lawyer can also help you recover estate assets by filing a discovery and turnover proceeding. This usually happens when there are bank accounts or real estate that are under joint tenancy with rights of survivorship or transfer on death. Sometimes, other personal property such as valuable paintings may have been taken by a family member before the decedent’s death. A discovery and turnover proceeding can help the executor recover these estate assets.

Executor or administrator misconduct

When you are a beneficiary or heir and you suspect the executor and administrator is committing misconduct, such as selling the real property for below market value without justifiable reason or stealing estate assets, an inheritance lawyer can help you file a petition for the removal of the executor or administrator and for the appointment of a successor. At times, when time is of the essence, the filing of an application for a temporary restraining order or preliminary injunction may be appropriate. An inheritance lawyer can help you do these things.

Spousal elective share

Most states have a minimum amount that a spouse should receive, especially if there has been no waiver. In New York, when a deceased spouse dies with a will, the surviving spouse is entitled to 1/3 of the probate estate plus testamentary substitutes or $50,000, whichever is higher. Waivers usually appear in pre-nuptial agreements, and if there are no waivers, the spouse is entitled to this elective share and must file the claim within a specific period.

Some spouses might believe that they are already receiving one-third of the estate, when in fact, what they have received is lesser because the computation of the estate did not include testamentary substitutes. The probate estate excludes testamentary substitutes such as insurance proceeds, retirement funds, Totten trust accounts, properties under transfer on death or where decedent retained a life estate, and gifts made within one year before death. An inheritance lawyer will be able to help a spouse compute for the correct spousal elective share and file the claim within the prescribed time in order for the claim not to lapse.

Above are only a limited sample of what an inheritance lawyer can do. The right inheritance lawyer can help you achieve your objective by strategizing, given your unique circumstances. Estate proceedings and litigation can be complex and requires expertise in order to avoid costly and timely mistakes. If you are in need of assistance regarding inheritance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].